EXHIBIT 1
FLORIDA POWER CORPORATION
d/b/a PROGRESS ENERGY FLORIDA , INC.
First Mortgage Bonds
5.10% Series due 2015
UNDERWRITING AGREEMENT
November 18, 2003
To the Representative named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Dear Ladies and Gentlemen:
The undersigned Florida Power Corporation d/b/a Progress Energy
Florida, Inc. (the "Company") hereby confirms its agreement with each of the
several Underwriters hereinafter named as follows:
1. Underwriters and Representative. The term "Underwriters" as
used herein shall be deemed to mean the firm or the several firms named in
Schedule II of this Underwriting Agreement (the "Agreement") and any underwriter
substituted as provided in paragraph 6, and the term "Underwriter" shall be
deemed to mean any one of such Underwriters. If the firm or firms listed in
Schedule I hereto (individually and collectively, the "Representative") are the
same as the firm or firms listed in Schedule II hereto, then the terms
"Underwriters" and "Representative," as used herein, shall each be deemed to
refer to such firm or firms. Each Representative represents jointly and
severally that they have been authorized by the Underwriters to execute this
Agreement on their behalf and to act for them in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint. If more
than one firm is named in Schedule I hereto, any action under or in respect of
this Agreement may be taken by such firms jointly as the Representative or by
one of the firms acting on behalf of the Representative, and such action will be
binding upon all the Underwriters.
2. Description of Securities. The Company proposes to issue and
sell its First Mortgage Bonds of the designation, with the terms and in the
amount specified in Schedule I hereto (the "Securities"), under its Indenture,
dated as of January 1, 1944, with JPMorgan Chase Bank, as successor Trustee, as
supplemented by the Seventh, Eighth, Sixteenth, Twenty-Ninth, Thirty-Eighth,
Fortieth, Forty-First and Forty-Second supplemental indentures, and as it will
be further supplemented by the Forty-Third Supplemental Indenture relating to
the Securities (the "Forty-Third Supplemental Indenture"), in substantially the
form heretofore delivered to the Representative, said Indenture as supplemented
by the Seventh, Eighth, Sixteenth, Twenty-Ninth, Thirty-Eighth, Fortieth,
Forty-First and Forty-Second supplemental indentures, and to be supplemented by
the Forty-Third Supplemental Indenture being hereinafter referred to as the
"Mortgage."
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3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-3 (No. 333-103974) (the "New Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), for the
registration of up to an aggregate of $1,000,000,000 principal amount
of First Mortgage Bonds and Debt Securities in unallocated amounts. The
New Registration Statement also constituted post-effective amendment
no. 1 to a registration statement on Form S-3 (No. 333-63204) (the
"Post-Effective Amendment" and together with the New Registration
Statement, the "Registration Statement") under the Securities Act
relating to an aggregate of $50,000,000 principal amount of the
Company's securities, which had been previously registered under the
Securities Act but remained unsold at the time the Post-Effective
Amendment became effective. The Registration Statement contained a
combined prospectus for the sale of $1,050,000,000 of the Company's
First Mortgage Bonds and Debt Securities (the "Registered Securities")
in unallocated amounts, as each is defined in the Registration
Statement. The Registration Statement was declared effective by the
Commission on April 4, 2003. As of the date hereof, the Company has
sold none of the Registered Securities. The term "Registration
Statement" shall be deemed to include all amendments to the date hereof
and all documents incorporated by reference therein (the "Incorporated
Documents"). The combined prospectus included in the Registration
Statement, as supplemented by a preliminary prospectus supplement,
dated November 18, 2003, relating to the Securities, and all prior
amendments or supplements thereto (other than amendments or supplements
relating to Registered Securities other than the Securities), including
the Incorporated Documents, is hereinafter referred to as the
"Preliminary Prospectus." The combined prospectus included in the
Registration Statement, as it is to be supplemented by a prospectus
supplement, dated on the date hereof, substantially in the form
delivered to the Representative prior to the execution hereof, relating
to the Securities (the "Prospectus Supplement") and all prior
amendments or supplements thereto (other than amendments or supplements
relating to securities of the Company other than the Securities),
including the Incorporated Documents, is hereinafter referred to as the
"Prospectus." Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), deemed to be incorporated therein after the date
hereof and prior to the termination of the offering of the Securities
by the Underwriters; and any references herein to the terms
"Registration Statement" or "Prospectus" at a date after the filing of
the Prospectus Supplement shall be deemed to refer to the Registration
Statement or the Prospectus, as the case may be, as each may be amended
or supplemented prior to such date.
(b) The Registration Statement, at the time and date it
was declared effective by the Commission, complied, and the
Registration Statement, the Prospectus and the Mortgage, as of the date
hereof and at the Closing Date, will comply, in all material respects,
with the applicable provisions of the Securities Act and the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the applicable
instructions, rules and regulations of the Commission thereunder; the
Registration Statement, at the time and
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date it was declared effective by the Commission, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus, as of its date and at the
Closing Date, will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the foregoing
representations and warranties in this subparagraph (b) shall not apply
to statements or omissions made in reliance upon and in conformity with
information furnished herein or in writing to the Company by the
Representative or by or on behalf of any Underwriter through the
Representative expressly for use in the Prospectus or to any statements
in or omissions from the Statement of Eligibility (Form T-1) of the
Trustee. The Incorporated Documents, at the time they were each filed
with the Commission, complied in all material respects with the
applicable requirements of the Exchange Act and the instructions, rules
and regulations of the Commission thereunder, and any documents so
filed and incorporated by reference subsequent to the date hereof and
prior to the termination of the offering of the Securities by the
Underwriters will, at the time they are each filed with the Commission,
comply in all material respects with the requirements of the Exchange
Act and the instructions, rules and regulations of the Commission
thereunder; and, when read together with the Registration Statement and
the Prospectus, none of such documents included or includes or will
include any untrue statement of a material fact or omitted or omits or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida; has corporate power and authority to own, lease and operate
its properties and to conduct its business as contemplated under this
Agreement and the other agreements to which it is a party; and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on the business, properties, results of
operations or financial condition of the Company.
(d) The historical financial statements incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial condition and operations of the Company at the
respective dates or for the respective periods to which they apply;
such financial statements have been prepared in each case in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved, except that the quarterly financial
statements incorporated by reference from any Quarterly Reports on Form
10-Q contain condensed footnotes prepared in accordance with applicable
Exchange Act rules and regulations; and any accounting firms that have
audited any of the financial statements are independent public or
independent certified public accountants as required by the Securities
Act or the Exchange Act and the rules and regulations of the Commission
thereunder.
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(e) Except as reflected in, or contemplated by, the
Registration Statement and the Prospectus, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, and prior to the Closing Date, (i) there has not been any
material adverse change in the business, properties, results of
operations or financial condition of the Company, (ii) there has not
been any material transaction entered into by the Company other than
transactions contemplated by the Registration Statement and Prospectus
or transactions arising in the ordinary course of business and (iii)
the Company has no material contingent obligation that is not disclosed
in the Registration Statement and Prospectus that could likely result
in a material adverse change in the business, properties, results of
operations or financial condition of the Company.
(f) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement. The execution
and delivery of this Agreement, the consummation of the transactions
herein contemplated and the fulfillment of the terms hereof on the part
of the Company to be fulfilled have been duly authorized by all
necessary corporate action of the Company in accordance with the
provisions of its articles of incorporation, as amended (the
"Charter"), by-laws and applicable law; and the Securities, when issued
and delivered as provided herein, will constitute legal, valid and
binding obligations of the Company in accordance with their terms
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting mortgagees'
and other creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity and except for the effect on
enforceability of federal or state law limiting, delaying or
prohibiting the making of payments outside the United States);
provided, however, that certain remedies, waivers and other provisions
of the Securities may not be enforceable, but such unenforceability
will not render the Securities invalid as a whole or affect the
judicial enforcement of (i) the obligation of the Company to repay the
principal, together with the interest thereon as provided in the
Securities or (ii) the right of the Trustee to exercise its right to
foreclose under the Mortgage.
(g) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not result in
a breach of any of the terms or provisions of, or constitute a default
under, the Charter, the Company's by-laws, applicable law or any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is now a party or any judgment, order, writ or decree
of any government or governmental authority or agency or court having
jurisdiction over the Company or any of its assets, properties or
operations that, in the case of any such breach or default, would have
a material adverse effect on the business, properties, results of
operations or financial condition of the Company.
(h) The Securities conform in all material respects to
the description contained in the Prospectus.
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(i) The Company has no subsidiaries that meet the
definition of "significant subsidiary" as defined in Section
210.1-02(w) of Regulation S-X promulgated under the Securities Act.
(j) The Mortgage (A) has been duly authorized, executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of the Forty-Third Supplemental Indenture by the
Trustee, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity and except for the effect on enforceability of federal or state
law limiting, delaying or prohibiting the making of payments outside
the United States); and (B) conforms in all material respects to the
description thereof in the Prospectus. The Mortgage (including the
Forty-Third Supplemental Indenture upon its due execution by the
Company and the Trustee in accordance with the Indenture) has been
qualified under the 1939 Act.
(k) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(l) Except as described in or contemplated by the
Prospectus, there are no pending actions, suits or proceedings
(regulatory or otherwise) against or affecting the Company or its
properties that are likely in the aggregate to result in any material
adverse change in the business, properties, results of operations or
financial condition of the Company, or that are likely in the aggregate
to materially and adversely affect the Mortgage, the Securities or the
consummation of this Agreement or the transactions contemplated herein
or therein.
(m) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions herein contemplated or for the due
execution, delivery or performance of the Mortgage by the Company,
except such as have already been made or obtained or as may be required
under the Securities Act or state securities laws and except for the
qualification of the Forty-Third Supplemental Indenture under the 1939
Act.
4. Purchase and Sale. On the basis of the representations,
warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each such Underwriter agrees,
severally and not jointly, to purchase from the Company, the respective
principal amount of Securities of each series set forth opposite the name of
such Underwriter in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
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5. Reoffering by Underwriters. The Underwriters agree to make
promptly a bona fide public offering of the Securities to the public for sale as
set forth in the Prospectus, subject, however, to the terms and conditions of
this Agreement.
6. Time and Place of Closing; Default of Underwriters.
(a) Payment for the Securities shall be made at the
place, time and date specified in Schedule I hereto against delivery of
the Securities at the office of JPMorgan Chase Bank, 0 Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or such other place, time and date as the
Representative and the Company may agree. The hour and date of such
delivery and payment are herein called the "Closing Date." Payment for
the Securities shall be by wire transfer of immediately available funds
against delivery to The Depository Trust Company or to JPMorgan Chase
Bank, as custodian for The Depository Trust Company, in fully
registered global form registered in the name of CEDE & Co., as nominee
for the Depository Trust Company, for the respective accounts specified
by the Representative not later than the close of business on the
business day prior to the Closing Date or such other date and time not
later than the Closing Date as agreed by The Depository Trust Company
or JPMorgan Chase Bank. For the purpose of expediting the checking of
the certificates by the Representative, the Company agrees to make the
Securities available to the Representative not later than 10:00 A.M.
New York time, on the last full business day prior to the Closing Date
at said office of JPMorgan Chase Bank.
(b) If one or more Underwriters shall, for any reason
other than a reason permitted hereunder, fail to take up and pay for
the principal amount of the Securities of any series to be purchased by
such one or more Underwriters, the Company shall immediately notify the
Representative, and the non-defaulting Underwriters shall be obligated
to take up and pay for (in addition to the respective principal amount
of the Securities of such series set forth opposite their respective
names in Schedule II hereto) the principal amount of such series of
Securities that such defaulting Underwriter or Underwriters failed to
take up and pay for, up to a principal amount thereof equal to 10% of
the principal amount of all Securities of such series, each
non-defaulting Underwriter shall do so on a pro-rata basis according to
the amounts set forth opposite the name of such non-defaulting
Underwriter in Schedule II, and such non-defaulting Underwriters shall
have the right, within 24 hours of receipt of such notice, either to
take up and pay for (in such proportion as may be agreed upon among
them), or to substitute another Underwriter or Underwriters,
satisfactory to the Company, to take up and pay for the remaining
principal amount of the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase. If any unpurchased
Securities still remain, then the Company or the Representative shall
be entitled to an additional period of 24 hours within which to procure
another party or parties, members of the National Association of
Securities Dealers, Inc. (or if not members of such Association, who
are not eligible for membership in said Association and who agree (i)
to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein
and (ii) in making sales to comply with said Association's Conduct
Rules) and satisfactory to the Company, to purchase or agree to
purchase such unpurchased Securities on the terms herein set forth. In
any such case, either the
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Representative or the Company shall have the right to postpone the
Closing Date for a period not to exceed three full business days from
the date agreed upon in accordance with this paragraph 6, in order that
the necessary changes in the Registration Statement and Prospectus and
any other documents and arrangements may be effected. If (i) neither
the non-defaulting Underwriters nor the Company has arranged for the
purchase of such unpurchased Securities by another party or parties as
above provided and (ii) the Company and the non-defaulting Underwriters
have not mutually agreed to offer and sell the Securities other than
the unpurchased Securities, then this Agreement shall terminate without
any liability on the part of the Company or any Underwriter (other than
an Underwriter that shall have failed or refused, in accordance with
the terms hereof, to purchase and pay for the principal amount of the
Securities that such Underwriter has agreed to purchase as provided in
paragraph 4 hereof), except as otherwise provided in paragraph 7 and
paragraph 8 hereof.
7. Covenants of the Company. The Company covenants with each
Underwriter that:
(a) As soon as reasonably possible after the execution
and delivery of this Agreement, the Company will file the Prospectus
with the Commission pursuant to Rule 424 under the Securities Act
("Rule 424"), setting forth, among other things, the necessary
information with respect to the terms of offering of the Securities.
Upon request, the Company will promptly deliver to the Representative
and to counsel for the Underwriters, to the extent not previously
delivered, one fully executed copy or one conformed copy, certified by
an officer of the Company, of the Registration Statement, as originally
filed, and of all amendments thereto, if any, heretofore or hereafter
made (other than those relating solely to Registered Securities other
than the Securities), including any post-effective amendment (in each
case including all exhibits filed therewith and all documents
incorporated therein not previously furnished to the Representative),
including signed copies of each consent and certificate included
therein or filed as an exhibit thereto, and will deliver to the
Representative for distribution to the Underwriters as many conformed
copies of the foregoing (excluding the exhibits, but including all
documents incorporated therein) as the Representative may reasonably
request. The Company will also send to the Underwriters as soon as
practicable after the date of this Agreement and thereafter from time
to time as many copies of the Prospectus and the Preliminary Prospectus
as the Representative may reasonably request for the purposes required
by the Securities Act.
(b) During such period (not exceeding nine months) after
the commencement of the offering of the Securities as the Underwriters
may be required by law to deliver a Prospectus, if any event relating
to or affecting the Company, or of which the Company shall be advised
in writing by the Representative shall occur, which in the Company's
reasonable opinion (after consultation with counsel for the
Representative) should be set forth in a supplement to or an amendment
of the Prospectus in order to make the Prospectus not misleading in the
light of the circumstances when it is delivered to a purchaser, or if
it is necessary to amend the Prospectus to comply with the Securities
Act, the Company will forthwith at its expense prepare and furnish to
the Underwriters and dealers named by the Representative a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Prospectus that will supplement or
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amend the Prospectus so that as supplemented or amended it will comply
with the Securities Act and will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading. In case any
Underwriter is required to deliver a Prospectus after the expiration of
nine months after the commencement of the offering of the Securities,
the Company, upon the request of the Representative, will furnish to
the Representative, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended prospectus, or supplements or
amendments to the Prospectus, complying with Section 10(a) of the
Securities Act.
(c) The Company will make generally available to its
security holders, as soon as reasonably practicable, but in any event
not later than 16 months after the end of the fiscal quarter in which
the filing of the Prospectus pursuant to Rule 424 occurs, an earning
statement (in form complying with the provisions of Section 11(a) of
the Securities Act, which need not be certified by independent public
accountants) covering a period of twelve months beginning not later
than the first day of the Company's fiscal quarter next following the
filing of the Prospectus pursuant to Rule 424.
(d) The Company will use its best efforts promptly to do
and perform all things to be done and performed by it hereunder prior
to the Closing Date and to satisfy all conditions precedent to the
delivery by it of the Securities.
(e) As soon as reasonably possible after the Closing
Date, the Company will cause the Forty-Third Supplemental Indenture to
be recorded in all recording offices in the State of Florida in which
the property intended to be subject to the lien of the Mortgage is
located.
(f) The Company will advise the Representative, or the
Representative's counsel, promptly of the filing of the Prospectus
pursuant to Rule 424 and of any amendment or supplement to the
Prospectus or Registration Statement or of official notice of
institution of proceedings for, or the entry of, a stop order
suspending the effectiveness of the Registration Statement and, if such
a stop order should be entered, use its best efforts to obtain the
prompt removal thereof.
(g) The Company will use its best efforts to qualify the
Securities, as may be required, for offer and sale under the Blue Sky
or legal investment laws of such jurisdictions as the Representative
may designate and will file and make in each year such statements or
reports as are or may be reasonably required by the laws of such
jurisdictions; provided, however, that the Company shall not be
required to qualify as a foreign corporation or dealer in securities,
or to file any general consents to service of process, under the laws
of any jurisdiction.
(h) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement to the Prospectus which shall not have
previously been furnished to the Representative or of which the
Representative shall not previously have been advised or to which the
Representative
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shall reasonably object in writing and which has not been approved by
the Underwriter(s) or their counsel acting on behalf of the
Underwriters.
8. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and the printing of
this Agreement, (ii) the delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel and accountants, (iv) the
expenses in connection with the qualification of the Securities under securities
laws in accordance with the provisions of paragraph 7(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith, such fees and disbursements not to exceed $7,500, (v) the printing
and delivery to the Underwriters of copies of the Registration Statement and all
amendments thereto, of the preliminary prospectuses, and of the Prospectus and
any amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and (vii) the preparation,
execution, filing and recording by the Company of the Forty-Third Supplemental
Indenture (such filing and recordation to be promptly made after execution and
delivery of the Forty-Third Supplemental Indenture to the Trustee under the
Mortgage in the counties in which the mortgaged property of the Company is
located); and the Company will pay all taxes, if any (but not including any
transfer taxes), on the issue of the Securities and the filing and recordation
of the Forty-Third Supplemental Indenture. The fees and disbursements of
Underwriters' counsel shall be paid by the Underwriters (subject, however, to
the provisions of this paragraph 8 requiring payment by the Company of fees and
disbursements not to exceed $7,500); provided, however, that if this Agreement
is terminated in accordance with the provisions of paragraph 9, 10 or 12 hereof,
the Company shall reimburse the Representative for the account of the
Underwriters for the fees and disbursements of Underwriters' counsel. The
Company shall not be required to pay any amount for any expenses of the
Representative or of any other of the Underwriters except as provided in
paragraph 7 hereof and in this paragraph 8. The Company shall not in any event
be liable to any of the Underwriters for damages on account of the loss of
anticipated profit.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company as of the date hereof and the Closing Date, to the performance by the
Company of its obligations to be performed hereunder prior to the Closing Date,
and to the following further conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or, to the
Company's knowledge, threatened by, the Commission on the Closing Date.
The Representative shall have received, prior to payment for the
Securities, a certificate dated the Closing Date and signed by the
Chairman, President, Treasurer or a Vice President of the Company to
the effect that no such stop order is in effect and that no proceedings
for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(b) At the time of execution of this Agreement, or such
later date as shall have been consented to by the Representative, there
shall have been issued, and on the Closing Date there shall be in full
force and effect, an order of the Florida Public Service
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Commission authorizing the issuance and sale of the Securities, which
shall not contain any provision unacceptable to the Representative by
reason of its being materially adverse to the Company (it being
understood that no such order in effect on the date of this Agreement
and heretofore furnished to the Representative or counsel for the
Underwriters contains any such unacceptable provision).
(c) At the Closing Date, the Representative shall receive
favorable opinions from: (1) Hunton & Xxxxxxxx LLP, counsel to the
Company, which opinion shall be satisfactory in form and substance to
counsel for the Underwriters, and (2) Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, in each of which opinions (except as to subdivision
(vi) (as to documents incorporated by reference, at the time they were
filed with the Commission) as to which Xxxxx Xxxxxxxxxx LLP need
express no opinion) said counsel may rely as to all matters of Florida
law upon the opinion of R. Xxxxxxxxx Xxxxx, Associate General Counsel
of Progress Energy Service Company LLC, acting as counsel to the
Company, to the effect that:
(i) The Mortgage has been duly and validly
authorized by all necessary corporate action (with this
opinion required in the Hunton & Xxxxxxxx LLP and Xxxxx
Xxxxxxxxxx LLP opinions only as to the original Indenture
dated as of January 1, 1944 and the supplemental indentures
subsequent to, but not including, the Thirty-Eighth
Supplemental Indenture), has been duly and validly executed
and delivered by the Company (with this opinion required in
the Hunton & Xxxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP opinions
only as to the original Indenture dated as of January 1, 1944
and the supplemental indentures subsequent to, but not
including, the Thirty-Eighth Supplemental Indenture), and is a
valid and binding mortgage of the Company enforceable in
accordance with its terms, except as limited by bankruptcy,
insolvency or other laws affecting mortgagees' and other
creditors' rights and general equitable principles and any
implied covenant of good faith and fair dealing (with this
opinion required in the Hunton & Xxxxxxxx LLP and Xxxxx
Xxxxxxxxxx LLP opinions only as to the original Indenture
dated as of January 1, 1944 and the supplemental indentures
subsequent to, but not including, the Thirty-Eighth
Supplemental Indenture); provided, however, that certain
remedies, waivers and other provisions of the Mortgage may not
be enforceable, but such unenforceability will not render the
Mortgage invalid as a whole or affect the judicial enforcement
of (i) the obligation of the Company to repay the principal,
together with the interest thereon as provided in the
Securities or (ii) the right of the Trustee to exercise its
right to foreclose under the Mortgage;
(ii) The Mortgage has been duly qualified under
the 1939 Act;
(iii) Assuming authentication of the Securities by
the Trustee in accordance with the Mortgage and delivery of
the Securities to and payment for the Securities by the
Underwriters, as provided in this Agreement, the Securities
have been duly and validly authorized, executed and delivered
and are legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as limited
by bankruptcy, insolvency or other laws affecting
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mortgagees' and other creditors' rights and general equitable
principles and any implied covenant of good faith and fair
dealings, and are entitled to the benefits of the security
afforded by the Mortgage, and are secured equally and ratably
with all other bonds outstanding under the Mortgage except
insofar as any sinking or other fund may afford additional
security for the bonds of any particular series;
(iv) The statements made in the Prospectus under
the caption "Description of First Mortgage Bonds" and in the
Prospectus Supplement under the captions "Certain Terms of the
Bonds" and "Description of First Mortgage Bonds," insofar as
they purport to constitute summaries of the documents referred
to therein, are accurate summaries in all material respects;
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company;
(vi) The Registration Statement, at the time and
date it was declared effective by the Commission, and the
Preliminary Prospectus and the Prospectus, as of their
respective dates (except as to the financial statements and
other financial and statistical data constituting a part
thereof or incorporated by reference therein, upon which such
opinions need not pass), complied as to form in all material
respects with the requirements of the Securities Act and the
1939 Act and the applicable instructions, rules and
regulations of the Commission thereunder; the documents or
portions thereof filed with the Commission pursuant to the
Exchange Act and deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus and the
Prospectus pursuant to Item 12 of Form S-3 (except as to
financial statements and other financial and statistical data
constituting a part thereof or incorporated by reference
therein and that part of the Registration Statement that
constitutes the Statement of Eligibility on Form T-1, upon
which such opinions need not pass), at the time they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the
applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement has become
effective under the Securities Act and, to the best of the
knowledge of said counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, and no proceedings for a stop order with
respect thereto are threatened or pending under Section 8 of
the Securities Act; and
(vii) Nothing has come to the attention of said
counsel that would lead them to believe that the Registration
Statement, at the time and date it was declared effective by
the Commission, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and nothing has come to the attention of said
counsel that would lead them to believe that (x) the
Preliminary Prospectus, as of its date, included an untrue
statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading or (y)
11
the Prospectus, as of its date and, as amended or
supplemented, at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except as to financial
statements and other financial and statistical data
constituting a part of the Registration Statement, the
Preliminary Prospectus or the Prospectus or incorporated by
reference therein and that part of the Registration Statement
that constitutes the Statement of Eligibility on Form T-1,
upon which such opinions need not pass);
(d) At the Closing Date, the Representative shall receive
from R. Xxxxxxxxx Xxxxx, Associate General Counsel of Progress Energy
Service Company, LLC, acting as counsel to the Company, a favorable
opinion in form and substance satisfactory to counsel for the
Underwriters, to the same effect with respect to the matters enumerated
in subdivisions (i), (iii), (v) and (vii) of subparagraph (c) of this
paragraph 9 as the opinions required by said subparagraph (c), and to
the further effect that:
(i) The Company is a validly organized and
existing corporation under the laws of the State of Florida;
(ii) The Company is duly authorized by its
Charter to conduct the business that it is now conducting as
set forth in the Prospectus;
(iii) The Company is an electrical utility engaged
in the business of generating, transmitting, distributing and
selling electric power to the general public in the State of
Florida;
(iv) The Company has valid and subsisting
franchises, licenses and permits adequate for the conduct of
its business, except where the failure to hold such
franchises, licenses and permits would not have a material
adverse effect on the business, properties, results of
operations or financial condition of the Company;
(v) The Company has good and marketable title,
with minor exceptions, restrictions and reservations in
conveyances, and defects that are of the nature ordinarily
found in properties of similar character and magnitude and
that, in his opinion, will not in any substantial way impair
the security afforded by the Mortgage, to all the properties
described in the granting clauses of the Mortgage and upon
which the Mortgage purports to create a lien. The description
in the Mortgage of the above-mentioned properties is legally
sufficient to constitute the Mortgage a lien upon said
properties, including without limitation properties hereafter
acquired by the Company (other than those expressly excepted
and reserved therefrom). Said properties constitute
substantially all the permanent physical properties and
franchises (other than those expressly excepted and reserved
therefrom) of the Company and are held by the Company free and
clear of all liens and encumbrances except the lien of the
Mortgage and excepted encumbrances, as defined in the
Mortgage. The properties of the Company are
12
subject to liens for current taxes, which it is the practice
of the Company to pay regularly as and when due. The Company
has easements for rights-of-way adequate for the operations
and maintenance of its transmission and distribution lines
that are not constructed upon public highways. The Company has
followed the practice generally of acquiring (i) certain
rights-of-way and easements and certain small parcels of fee
property appurtenant thereto and for use in conjunction
therewith and (ii) certain other properties of small or
inconsequential value, without an examination of title and, as
to the title to lands affected by said rights-of-way and
easements, of not examining the title of the lessor or grantor
whenever the lands affected by such rights-of-way and
easements are not of such substantial value as in the opinion
of the Company to justify the expense attendant upon
examination of titles in connection therewith. In the opinion
of said counsel, such practice of the Company is consistent
with sound economic practice and with the method followed by
other companies engaged in the same business and is reasonably
adequate to assure the Company of good and marketable title to
all such property acquired by it. It is the opinion of said
counsel that any such conditions or defects as may be covered
by the above recited exceptions are not substantial and would
not materially interfere with the Company's use of such
properties or with its business operations. The Company has
the right of eminent domain in the State of Florida under
which it may, if necessary, perfect or obtain title to
privately owned land or acquire easements or rights-of-way
required for use or used by the Company in its public utility
operations;
(vi) The Mortgage has been recorded and filed in
such manner and in such places as may be required by law in
order fully to preserve and protect, in all material respects,
the security of the bondholders and all rights of the Trustee
thereunder; and the Forty-Third Supplemental Indenture
relating to the Securities is in proper form for filing for
record both as a real estate mortgage and as a security
interest in all counties in the State of Florida in which any
of the property (except as any therein or in the Mortgage are
expressly excepted) described therein or in the Mortgage as
subject to the lien of the Mortgage is located and, upon such
recording, the Forty-Third Supplemental Indenture will
constitute adequate record notice to perfect the lien of the
Mortgage, and preserve and protect, in all material respects,
the security of the bondholders and all rights of the Trustee,
as to all mortgaged and pledged property acquired by the
Company subsequent to the recording of the Forty-First
Supplemental Indenture and prior to the recording of the
Forty-Third Supplemental Indenture;
(vii) The Mortgage constitutes a valid, direct and
first mortgage lien of record upon all franchises and
properties now owned by the Company (other than those
expressly excepted therefrom and other than those franchises
and properties which are not, individually or in the
aggregate, material to the Company or the security afforded by
the Mortgage) situated in the State of Florida, as described
or referred to in the granting clauses of the Mortgage,
subject to the exceptions as to bankruptcy, insolvency and
other laws stated in subdivision (i) of subparagraph (c)
above;
13
(viii) The issuance and sale of the Securities have
been duly authorized by all necessary corporate action on the
part of the Company;
(ix) An order has been entered by the Florida
Public Service Commission authorizing the issuance and sale of
the Securities, and to the best of the knowledge of said
counsel, said order is still in force and effect; and no
further filing with, approval, authorization, consent or other
order of any public board or body (except such as have been
obtained under the Securities Act and as may be required under
the state securities or Blue Sky laws of any jurisdiction) is
legally required for the consummation of the transactions
contemplated in this Agreement;
(x) Except as described in or contemplated by
the Prospectus, there are no pending actions, suits or
proceedings (regulatory or otherwise) against the Company or
any properties that are likely, in the aggregate, to result in
any material adverse change in the business, properties,
results of operations or financial condition of the Company or
that are likely, in the aggregate, to materially and adversely
affect the Mortgage, the Securities or the consummation of
this Agreement, or the transactions contemplated herein or
therein; and
(xi) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
(i) result in a breach of any of the terms or provisions of,
or constitute a default under, the Charter or the Company's
by-laws or (ii) result in a material breach of any terms or
provisions of, or constitute a default under, any applicable
law, indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is now a party or any
judgment, order, writ or decree of any government or
governmental authority or agency or court having jurisdiction
over the Company or any of its assets, properties or
operations that, in the case of any such breach or default,
would have a material adverse effect on business, properties,
results of operations or financial condition of the Company.
(e) The Representative shall have received on the date
hereof and shall receive on the Closing Date from each of Deloitte &
Touche LLP and KPMG LLP, a letter addressed to the Representative
containing statements and information of the type ordinarily included
in accountants' SAS 72 "comfort letters" to underwriters with respect
to the audit reports, financial statements and certain financial
information contained in or incorporated by reference into the
Prospectus.
(f) At the Closing Date, the Representative shall receive
a certificate of the Chairman, President, Treasurer or a Vice President
of the Company, dated the Closing Date, to the effect that the
representations and warranties of the Company in this Agreement are
true and correct as of the Closing Date.
(g) All legal proceedings taken in connection with the
sale and delivery of the Securities shall have been satisfactory in
form and substance to counsel for the Underwriters, and the Company, as
of the Closing Date, shall be in compliance with any
14
governing order of the Florida Public Service Commission, except where
the failure to comply with such order would not be material to the
offering or validity of the Securities.
In case any of the conditions specified above in this paragraph 9 shall
not have been fulfilled or waived by 2:00 P.M. on the Closing Date, this
Agreement may be terminated by the Representative by delivering written notice
thereof to the Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in paragraphs 7 and 8
hereof.
10. Conditions of the Company's Obligations. The obligations of
the Company to deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date, and no
proceedings for that purpose shall be pending before or threatened by
the Commission on the Closing Date.
(b) Prior to 12:00 Noon, New York time, on the day
following the date of this Agreement, or such later date as shall have
been consented to by the Company, there shall have been issued and on
the Closing Date there shall be in full force and effect an order of
the Florida Public Service Commission authorizing the issuance and sale
by the Company of the Securities, which shall not contain any provision
unacceptable to the Company by reason of its being materially adverse
to the Company (it being understood that the order in effect as of the
date of this Agreement contains any such unacceptable provision).
In case any of the conditions specified in this paragraph 10 shall not
have been fulfilled at the Closing Date, this Agreement may be terminated by the
Company by delivering written notice thereof to the Representative. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in paragraphs 7 and 8 hereof.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter, each officer and director of each Underwriter and
each person who controls any Underwriter within the meaning of Section
15 of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject and to reimburse each such Underwriter, each such officer and
director, and each such controlling person for any legal or other
expenses (including to the extent hereinafter provided, reasonable
counsel fees) incurred by them, when and as incurred, in connection
with investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or are
based upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus, or in the Registration Statement or
Prospectus as amended or supplemented (if any amendments or supplements
thereto shall have been furnished), or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
15
however, that the indemnity agreement contained in this paragraph 11
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of or based upon any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and
in conformity with information furnished herein or in writing to the
Company by any Underwriter through the Representative expressly for use
in the Registration Statement, the Preliminary Prospectus or the
Prospectus, or any amendment or supplement to any thereof, or arising
out of, or based upon, statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) of the Trustee, and provided,
further, that the indemnity agreement contained in this paragraph 11
shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any such losses, claims,
damages, liabilities, expenses or actions arising from the sale of the
Securities to any person if a copy of the Prospectus (excluding
documents incorporated by reference therein) shall not have been given
or sent to such person by or on behalf of such Underwriter with or
prior to the written confirmation of the sale involved, unless such
Prospectus failed to correct the omission or misstatement. The
indemnity agreement of the Company contained in this paragraph 11 and
the representations and warranties of the Company contained in
paragraph 3 hereof shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any
Underwriter, and such officer or director or any such controlling
person and shall survive the delivery of the Securities. The
Underwriters agree to notify promptly the Company, and each other
Underwriter, of the commencement of any litigation or proceedings
against them or any of them, or any such officer or director or any
such controlling person, in connection with the sale of the Securities.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, its officers who signed the
Registration Statement and its directors, and each person who controls
the Company within the meaning of Section 15 of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject and to
reimburse each of them for any legal or other expenses (including, to
the extent hereinafter provided, reasonable counsel fees) incurred by
them, when and as incurred, in connection with investigating any such
losses, claims, damages, or liabilities, or in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Preliminary Prospectus or
the Prospectus as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if
such statement or omission was made in reliance upon and in conformity
with information furnished herein or in writing to the Company by such
Underwriter or through the Representative on behalf of such Underwriter
expressly for use in the Registration Statement, the Preliminary
Prospectus or the Prospectus or any amendment or supplement to any
thereof. The indemnity agreement of all the respective Underwriters
contained in this paragraph 11 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the
Company or any other
16
Underwriter, or any such officer or director or any such controlling
person, and shall survive the delivery of the Securities. The Company
agrees promptly to notify the Representative of the commencement of any
litigation or proceedings against the Company or any of its officers or
directors, or any such controlling person, in connection with the sale
of the Securities.
(c) The Company and each of the Underwriters agree that,
upon the receipt of notice of the commencement of any action against
it, its officers or directors, or any person controlling it as
aforesaid, in respect of which indemnity may be sought on account of
any indemnity agreement contained herein, it will promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought hereunder. The Company and each of the
Underwriters agree that the notification required by the preceding
sentence shall be a material term of this Agreement. The omission so to
notify such indemnifying party or parties of any such action shall
relieve such indemnifying party or parties from any liability that it
or they may have to the indemnified party on account of any indemnity
agreement contained herein if such indemnifying party was materially
prejudiced by such omission, but shall not relieve such indemnifying
party or parties from any liability that it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given,
such indemnifying party shall be entitled to participate at its own
expense in the defense or, if it so elects, to assume (in conjunction
with any other indemnifying parties) the defense of such action, in
which event such defense shall be conducted by counsel chosen by such
indemnifying party (or parties) and satisfactory to the indemnified
party or parties who shall be defendant or defendants in such action,
and such defendant or defendants shall bear the fees and expenses of
any additional counsel retained by them; but if the indemnifying party
shall elect not to assume the defense of such action, such indemnifying
parties will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them, as such
expenses are incurred; provided, however, if the defendants (including
any impleaded parties) in any such action include both the indemnified
party and the indemnifying party, and counsel for the indemnified party
shall have concluded, in its reasonable judgment, that there may be a
conflict of interest involved in the representation by such counsel of
both the indemnifying party and the indemnified party, the indemnified
party or parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the defense
of such action on behalf of such indemnified party or parties (it being
understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to one
local counsel) representing the indemnified parties who are parties to
such action). Each of the Company and the several Underwriters agrees
that without the other party's prior written consent, which consent
shall not be unreasonably withheld, it will not settle, compromise or
consent to the entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification provisions of
this Agreement, unless such settlement, compromise or consent includes
an unconditional release of such other party from all liability arising
out of such claim.
(d) If the indemnification provided for in subparagraphs
(a) or (b) above is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect
17
of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from
the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and of the Underwriters, on the
other hand, in connection with the statements or omissions that
resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by
the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subparagraph (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to above in this
subparagraph (d). The rights of contribution contained in this Section
11 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Underwriter of the
Company and shall survive delivery of the Securities. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this subparagraph (d), each officer and director of each Underwriter
and each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations
to contribute pursuant to this subparagraph (d) are several in
proportion to the number of Securities set forth opposite their
respective names in Schedule II hereto and not joint.
(e) For purposes of this paragraph 11, it is understood
and agreed that the only information provided by the Underwriters
expressly for use in the Registration Statement and Prospectus were the
following parts of the section titled "Underwriting": the second, third
and fourth sentences of the second paragraph, the third sentence of the
third
18
paragraph, all of the fourth paragraph, all of the fifth paragraph and
all of the sixth paragraph.
12. Termination Date of this Agreement. This Agreement may be
terminated by the Representative at any time prior to the Closing Date by
delivering written notice thereof to the Company, if on or after the date of
this Agreement but prior to such time (a) there shall have occurred any general
suspension of trading in securities on the New York Stock Exchange, or there
shall have been established by the New York Stock Exchange or by the Commission
or by any federal or state agency or by the decision of any court, any
limitation on prices for such trading or any restrictions on the distribution of
securities or (b) there shall have occurred any new outbreak of hostilities
including, but not limited to, significant escalation of hostilities that
existed prior to the date of this Agreement or any national or international
calamity or crisis, or any material adverse change in the financial markets of
the United States, the effect of which outbreak, escalation, calamity or crisis,
or material adverse change on the financial markets of the United States shall
be such as to make it impracticable, in the reasonable judgment of the
Representative, for the Underwriters to enforce contracts for the sale of the
Securities, or (c) the Company shall have sustained a substantial loss by fire,
flood, accident or other calamity that renders it impracticable, in the
reasonable judgment of the Representative, to consummate the sale of the
Securities and the delivery of the Securities by the several Underwriters at the
initial public offering price, or (d) there shall have been any downgrading or
any notice of any intended or potential downgrading in the rating accorded the
Company's securities by any "nationally recognized statistical rating
organization" as that term is defined by the Commission for the purposes of
Securities Act Rule 436(g)(2), or any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities, or any of the Company's other
outstanding debt, the effect of which in the reasonable judgment of the
Representative, makes it impracticable or inadvisable to consummate the sale of
the Securities and the delivery of the Securities by the several Underwriters at
the initial public offering price or (e) there shall have been declared, by
either federal or New York authorities, a general banking moratorium. This
Agreement may also be terminated at any time prior to the Closing Date if in the
reasonable judgment of the Representative the subject matter of any amendment or
supplement to the Registration Statement or Prospectus (other than an amendment
or supplement relating solely to the activity of any Underwriter or
Underwriters) filed after the execution of this Agreement shall have materially
impaired the marketability of the Securities. Any termination hereof pursuant to
this paragraph 12 shall be without liability of any party to any other party
except as otherwise provided in paragraphs 7 and 8.
13. Miscellaneous. The validity and interpretation of this
Agreement shall be governed by the laws of the State of New York. Unless
otherwise specified, time of day refers to New York City time. This Agreement
shall inure to the benefit of, and be binding upon, the Company, the several
Underwriters, and with respect to the provisions of paragraph 11 hereof, the
officers and directors and each controlling person referred to in paragraph 11
hereof, and their respective successors. Nothing in this Agreement is intended
or shall be construed to give to any other person, firm or corporation any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the several Underwriters.
19
14. Notices. All communications hereunder shall be in writing or
by telefax and, if to the Underwriters, shall be mailed, transmitted by any
standard form of telecommunication or delivered to the Representative at the
address set forth in Schedule I hereto and if to the Company, shall be mailed or
delivered to it at 000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx, Treasurer.
15. Counterparts. This Agreement may be simultaneously executed in
counterparts, each of which when so executed shall be deemed to be an original.
Such counterparts shall together constitute one and the same instrument.
16. Defined Terms. Unless otherwise defined herein, capitalized
terms used in this Underwriting Agreement shall have the meanings assigned to
them in the Registration Statement.
[The remainder of this page has been intentionally left blank.]
20
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed duplicate hereof
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
FLORIDA POWER CORPORATION
d/b/a PROGRESS ENERGY FLORIDA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Authorized Representative
Accepted as of the date first
above written, as Underwriter
named in, and as the Representative
of the other Underwriters named in, Schedule II.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Authorized Representative
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxxx
--------------------------
Authorized Representative
[Signature Page of PEF First Mortgage Bond Underwriting Agreement)]
21
SCHEDULE I
Underwriting Agreement dated November 18, 2003
Representative and Addresses: Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Kind - Global Power Investment
Banking
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Execution Group
Supplemental Indenture: Forty-Third, dated as of November 1, 2003
Designation: First Mortgage Bonds, 5.10% Series due 2015
Principal Amount: $300,000,000
Date of Maturity: December 1, 2015
Interest Rate: 5.10% per annum, payable June 1 and
December 1 of each year, commencing
June 1, 2004.
Purchase Price: 99.127% of the principal amount
thereof, plus no accrued interest to the date of
payment and delivery.
Public Offering Price: 99.802% of the principal
amount thereof, plus no accrued interest to the
date of payment and delivery.
Redemption Terms: Optional-- redeemable prior to maturity, in whole
or in part, at the option of the Company at a
make-whole redemption price (as defined and
described in further detail in the prospectus
supplement).
Special-- redeemable prior to maturity, in whole
but not in part, upon the occurrence of specific
events, at the option of the Company at a
make-whole redemption price (as defined and
described in further detail in the prospectus
supplement).
Closing Date and Location: November 21, 2003
Hunton & Xxxxxxxx LLP
One Hannover Square, Suite 1400
000 Xxxxxxxxxxxx Xx. Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
22
SCHEDULE II
UNDERWRITER PRINCIPAL AMOUNT OF BONDS
----------- -------------------------
Citigroup Global Markets Inc. ................................ $ 99,000,000
X.X. Xxxxxx Securities Inc. .................................. $ 99,000,000
Banc of America Securities LLC................................ $ 24,000,000
Banc One Capital Markets, Inc. ............................... $ 24,000,000
Wachovia Capital Markets, LLC................................. $ 24,000,000
BNY Capital Markets, Inc. .................................... $ 15,000,000
Barclays Capital Inc. ........................................ $ 12,000,000
The Xxxxxxxx Capital Group, L.P............................... $ 3,000,000
------------
TOTAL................................................... $300,000,000
23
